FSB: Best Lawyers in America 2011

This past week I received notice that I was again selected by my peers for inclusion in The Best Lawyers in America® 2011 in the field of "Health Care Law".

In all, nine lawyers from Flaherty Sensabaugh Bonasso PLLC were selected for inclusion in The Best Lawyers in America® 2011. Congratulations to my partners, David Givens and Mark Robinson, who were selected for the first time this year in the category of "Medical Malpractice".

Below is a list of all the 2011 FSB honorees:

• Mike Bonasso - Commercial Litigation
• Stephen Brooks - Medical Malpractice Law and Personal Injury Litigation
• Bob Coffield - Health Care Law
• Tom Flaherty - Personal Injury Litigation
• David Givens - Medical Malpractice Law
• Ted Martin - Medical Malpractice Law
• Mark Robinson - Medical Malpractice Law
• Don Sensabaugh - Medical Malpractice Law and Personal Injury Litigation
• Jeff Wakefield - Bet-the-Company Litigation, Commercial Litigation, Medical Malpractice

Best Lawyers is based on an exhaustive peer-review survey in which more than 39,000 leading attorneys cast almost 3.1 million votes on the legal abilities of other lawyers in their practice areas. Corporate Counsel magazine has called Best Lawyers "the most respected referral list of attorneys in practice."

SAMHSA and ONC: FAQs on Substance Abuse Confidentiality Regulations for HIEs

The Substance Abuse and Mental Health Services Administration (SAMHSA) and the Office of the National Coordinator for Health Information Technology (ONC) announced last week the release of FAQs for Applying the Substance Abuse Confidentiality Regulations to Health Information Exchanges (HIEs).

Cover letter regarding the FAQs by Pamela S. Hyde, the Administrator of SAMHSA, and David Blumenthal, National Coordinator for ONC. The letter describes that the the Substance Abuse Confidentiality Regulations under 42 CFR Part 2 were enacted years ago (circa 1975). Due to the age of the regulations SAMHSA and ONC created the FAQs to provide guidance and understanding of the scope of these regulations in the context of today's move toward an electronic health information system.

The FAQs outline the general requirements under 42 CFR Part 2, provide guidance on its application to HIEs, and identify methods for including substance abuse related health information into HIEs that is consistent with the Federal statute.

As a follow-up to the release of the FAQs, SAMHSA and ONC will convene a meeting of concerned or interested parties from both the Behavioral Health and Information Technology (BH-IT) communities on August 4, 2010. The meeting will be an opportunity for SAMHSA and ONC to receive questions and comments on the FAQs.

The FAQs for Applying the Substance Abuse Confidentiality Regulations to Health Information Exchanges (HIEs) provide information on the following 37 questions:

1. Does the federal law that protects the confidentiality of alcohol and drug abuse patient records allow information about patients with substance use disorders to be included in electronic health information exchange systems?
2. What types of providers are covered programs under 42 CFR Part 2 (“Part 2”)?
3. What patients, and which records and information, are protected by 42 C.F.R Part 2?
4. For the purposes of the applicability of 42 CFR Part 2, does it matter how HIOs are structured?
5. Does 42 CFR Part 2 permit the disclosure of information without a patient’s consent for the purposes of treatment, payment, or health care operations?
6. Under Part 2, can a Qualified Service Organization Agreement (QSOA) be used to facilitate communication between a Part 2 program and an HIO?
7. May information protected by Part 2 be made available to an HIO for electronic exchange?
8. If Part 2 information has been disclosed to the HIO, either pursuant to a Part 2- compliant consent form authorizing such disclosure or under a QSOA, may the HIO then make that Part 2 information available to HIO-affiliated members?
9. How do different HIO patient choice models regarding whether general clinical health information may be disclosed to or through an HIO (e.g., no consent, opt in or opt out) affect the requirements of 42 CFR Part 2?
10. If an HIO is holding or storing Part 2 patient data through a QSOA, can the HIO redisclose the data coming from the Part 2 program to a third party without patient consent?
11. What are the required elements of a patient consent under Part 2?
12. What must a Part 2 program do to notify the HIO, or any other recipient of Part 2 protected information, that it may not redisclose Part 2 information without patient consent?
13. Can a single consent form be used to authorize the disclosure of Part 2 information to an HIO, as well as authorize the redisclosure of that information to other identified parties, such as HIO affiliated members?
14. Does Part 2 allow the use of multiple-party consent forms?
15. Does Part 2 require the use of original signed consents?
16. Under Part 2, may an HIO release demographic information about Part 2 patients without patient consent?
17. Under Part 2, can an HIO reveal that a patient had an encounter at a mixed use facility (or “general medical” facility – see FAQ #2) as long as the HIO does not reveal that the patient was in the mixed use facility’s Part 2 program? A mixed use facility can be defined as a service provider organization that provides substance abuse treatment services as well as other health services such as primary care, dental care, mental health services, social services, etc.
18. Under Part 2, can an HIO use a consent form that provides for disclosure to “HIO members” and refers to the HIO’s website for a list of those members?
19. Can an HIO use a consent form under Part 2 to allow for the disclosure of information to future HIO affiliated health care providers?
20. Can an HIO use a consent form under Part 2 to allow for the disclosure of information to health care providers who are providing on-call coverage for HIO affiliated health care providers or with whom those affiliated providers consult?
21. Can a Part 2 patient consent be used to enable multiple disclosures?
22. Can a Part 2 program or HIO use a consent form that has no specific expiration date but rather states that disclosure is permitted until consent is revoked by the patient?
23. Is “treatment” a sufficient description of the intended purpose of a disclosure on a Part 2 consent?
24. Under Part 2, can any health care provider make the determination that a medical emergency exists, or must a Part 2 provider make that determination?
25. May a computer system be used to automatically determine whether a medical emergency exists and whether a disclosure of Part 2 data can be made without the patient’s consent?
26. If a medical emergency exists, can the entire Part 2 record be released?
27. For documentation purposes, if a medical emergency is present, would it be permissible under Part 2 to have treating providers simply check a drop down box signifying the existence of such a medical emergency?
28. Under Part 2, may an HIO system make clinical decision support functions (such as showing a patient’s medications to clinicians when they write prescriptions, automatically ordering medications, and/or alerting clinicians about potential drug interactions) available to HIO affiliated health care providers in a medical emergency?
29. Does the Part 2 definition of medical emergency also include mental health emergencies?
30. When the HIO keeps an electronic record of a medical emergency, does that fully meet Part 2’s requirement to document disclosures made in a medical emergencies in the patient’s record?
31. If an HIO’s electronic system makes a disclosure in a medical emergency, would documenting the name of the discloser as “electronically disclosed through the system administered by HIO” meet Part 2’s requirement that the name of the person who made the disclosure be documented in the patient’s record?
32. If an HIO’s electronic system sends Part 2 data in a medical emergency to a printer or fax machine in the emergency room, can “the printer in the emergency department” meet Part 2’s requirement to document in the patient’s record the name of the person to whom the disclosure was made?
33. Once Part 2 information is disclosed in a medical emergency, can that information be redisclosed without obtaining patient consent?
34. If a patient has previously refused to consent to the release of his/her Part 2 record to a particular HIO affiliated health care provider, and then the patient is brought to that provider in a bona fide medical emergency situation, can that provider gain access through the HIO to the information without the patient’s consent under Part 2?
35. Can an HIO disclose data for Disease Management purposes under Part 2 without patient consent?
36. Under Part 2, would an HIO be permitted to disclose to an HIO affiliated payer the data of several patients held by the HIO, which may include Part 2 data, in order for the payer to target where interventions could be made with particular patients to improve care and management of disease?
37. If an HIO affiliated health care provider wishes to gain access to a minor’s Part 2 record held by the HIO, may the HIO or provider obtain only the consent of a parent or guardian, or must the minor’s consent also be obtained?

State Attorney General HIPAA HITECH Enforcement

My health law colleague, David Harlow, covers the news today on the first HIPAA enforcement action taken by a state attorney general under the new HITECH provision of American Recovery and Reinvestment Act of 2009 (ARRA).

David's post, HIPAA enforcement by state attorney general: The shape of things to come, provides a good summary of the announcement by the Connecticut Attorney General. More information via the Connecticut Attorney General press release.

The lawsuit filed by the Connecticut Attorney General Richard Blumenthal (coincidentally brother of David Blumenthal, National Coordinator of Health Information Technology) alleges that a health insurer, Health Net of Connecticut, Inc., failed to promptly notify the AG and other officials of a missing portable computer disk drive that contained unencrypted protected health information, Social Security numbers and bank accounts for approximately 446,000 individuals. The lawsuit also named UnitedHealth Group Inc. and Oxford Health Plans, LLC who acquired ownership of Health Net of Connecticut. The action also seeks a court order against Health Net to encrypt all information held on electronic devices.

Since the early days of HIPAA implementation and compliance there has largely been a lack of real enforcement efforts. The new provisions under HITECH allowing state attorney generals to file HIPAA enforcement actions on behalf of the public bring a new era of enforcement against health care providers who are unfortunate to have a health data breach and fail to properly respond to such breach in a timely manner.

David offers some good advice and takeaway points to health care providers and others who regularly handle health information. It is not enough to have policies and procedures in place but to regularly monitor whether they are being followed. Today's health data is liquid and it can flow in many directions. Providers need to understand where and how data is stored, used and transferred.

Best Lawyers' 2009 West Virginia Personal Injury Litigator of the Year

Congratulations to my partner, Tom Flaherty, who was selected as Best Lawyers' 2009 West Virginia Litigator of the Year. A well deserved honor.

Tom is a straightforward and hardworking defense litigator who does an incredible job representing the best interests of his clients.

This past year he was involved in various high profile and important cases, including successfully leading a team of FSB lawyers to secure a settlement in the case against former West Virginia University football coach, Rich Rodriguez.



In all, seven Flaherty, Sensabaugh & Bonasso, PLLC lawyers were selected by their peers as 2009 Best Lawyers in America. See the complete list of those honored in my prior post, FSB: Best Lawyers in America 2009.

Following is Best Lawyers' press release honoring Tom:

Best Lawyers, the oldest and most respected peer-review publication in the legal profession, has named Thomas V. Flaherty as the “West Virginia Best Lawyers Personal Injury Litigator of the Year” for 2009.

After more than a quarter of a century in publication, Best Lawyers is designating “Lawyers of the Year” in high-profile legal specialties in large legal communities.

These specialties are Banking Law, Bet-the-Company Litigation, Corporate Law, Family Law, Personal Injury Litigation, and Real Estate Law and only a single lawyer in each specialty in each community is being honored as the “Lawyer of the Year.”

Best Lawyers compiles its lists of outstanding attorneys by conducting exhaustive peer-review surveys in which thousands of leading lawyers confidentially evaluate their professional peers. The current, 15th edition of The Best Lawyers in America (2009), is based on more than 2.5 million detailed evaluations of lawyers by other lawyers.

The lawyers being honored as “Lawyers of the Year” have received particularly high ratings in our surveys by earning a high level of respect among their peers for their abilities, professionalism, and integrity.

Steven Naifeh, Managing Editor of Best Lawyers, says, “We continue to believe – as we have believed for more than 25 years – that recognition by one’s peers is the most meaningful form of praise in the legal profession. We would like to congratulate Thomas V. Flaherty on being selected as the ‘West Virginia Best Lawyers Personal Injury Litigator of the Year’ for 2009.”

FSB: Best Lawyers in America 2009

This past week I learned that I was again selected by my peers for inclusion in The Best Lawyers in America® 2009 in the field of "Health Care Law".

In all, seven lawyers from Flaherty, Sensabaugh & Bonasso, PLLC were selected for inclusion in The Best Lawyers in America® 2009. Congratulations to my partner, Ted Martin, who was selected for the first time this year in the category of "Medical Malpractice".

Below is a list of all the 2009 FSB honorees:

• Mike Bonasso - Commercial Litigation
• Stephen Brooks - Medical Malpractice Law and Personal Injury Litigation
• Bob Coffield - Health Care Law
• Tom Flaherty - Personal Injury Litigation
• Ted Martin - Medical Malpractice Law 
• Don Sensabaugh - Medical Malpractice Law
• Jeff Wakefield - Commercial Litigation
  

Below is background information about Best Lawyers and the process used to select attorneys for inclusion:

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 25,000 leading attorneys cast almost two million votes on the legal abilities of other lawyers in their specialties, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”

FSB Best Lawyers in America 2008

Last week I learned that I was selected by my peers for inclusion in The Best Lawyers in America® 2008 in the field of "Health Care Law". This is the first year that I have been selected for the honor.

In all, six lawyers from Flaherty, Sensabaugh & Bonasso, PLLC were selected for inclusion in The Best Lawyers in America® 2008. Congratulations go out to the other honorees:

• Bob Coffield - Health Care Law
• Mike Bonasso - Commercial Litigation
• Tom Flaherty - Personal Injury Litigation (Defendants)
• Don Sensabaugh - Medical Malpractice Law (Defendants)
• Jeff Wakefield - Commercial Litigation (Defendants)
  
• Stephen Brooks - Medical Malpractice Law (Defendants)

Below is background information about Best Lawyers and the process used to select attorneys for inclusion:

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey in which more than 25,000 leading attorneys cast almost two million votes on the legal abilities of other lawyers in their specialties, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. Corporate Counsel magazine has called Best Lawyers “the most respected referral list of attorneys in practice.”